APPEAL FROM: Workersþ Compensation Court
For the State of Montana
The Honorable Michael McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Patrick R. Sheehy,
Halverson, Sheehy & Plath, Billings, Montana

For Respondent:

Oliver H. Goe, Browning,
Kaleczyc, Berry & Hoven, Helena, Montana

Submitted on Briefs:
May 8, 1997

Decided: May 20,
1997
Filed:

__________________________________________
Clerk

Justice James C.
Nelson delivered the Opinion of the Court.

On June 28, 1996, the Workers' Compensation Court entered findings of
fact,
conclusions of law and judgment denying Petitioner/Appellant Joe Yarborough
(Yarborough) compensation and medical benefits for an alleged work-related
injury aswell as attorney fees, costs and a penalty. Yarborough appeals
only that portion of the judgment denying him compensation and medical
benefits for his alleged work-related injury. We affirm.

We restate the
issues raised on appeal as follows:

1. Did the Workers'
Compensation Court err in determining that Yarborough
did not suffer a compensable injury when he developed post-traumatic
stress disorder?

2. Did the Workers'
Compensation Court err in determining that Yarborough
did not suffer any permanent physical restriction from the October 22,
1987 injury?

3. Did the Workers'
Compensation Court err in determining that Yarborough's
wages during 1987 were $1,780 per month or $21,360 annually?

4. Did the Workers'
Compensation Court err in failing to award wage
supplement benefits for the period 1988 to 1995?

FACTUAL AND PROCEDURAL BACKGROUND

Yarborough worked
as a firefighter for the City of Billings in Yellowstone County,
Montana, from 1983 until 1987. On October 22, 1987, Yarborough responded
to a fire at a residential home in Billings, Montana. Upon approaching
the burning home, a"fireball" exploded from the home, striking
and injuring Yarborough and one other
firefighter. Yarborough was taken to the emergency room in Saint Vincent
Hospital and treated for first and second degree burns on his face and
hands. He did not return to work for two and one-half weeks. Thereafter,
Yarborough resumed his normal duties without restriction until he resigned.
His last day of work was December 24, 1987.

Prior to the
October 22, 1987 accident (the accident), Yarborough had been treated
for depression, substance abuse, family problems and work problems beginning
in 1983. After the accident, Yarborough's psychiatrist diagnosed him
as suffering from post-traumatic stress disorder (PTSD) as a result
of the accident.

On May 24, 1995,
Yarborough filed a Petition for Hearing with the Workers'
Compensation Court seeking an award of temporary total disability benefits,
permanent partial disability benefits and medical benefits for the injuries
he sustained on October 22, 1987. After the Montana Municipal Insurance
Authority (MMIA), Respondent and Insurer for the City of Billings, filed
a motion for summary judgment, Yarborough abandoned all claims to temporary
total disability benefits. On May 7, 1996, the Workers' Compensation
Court held trial on Yarborough's claim to permanent partial disability
benefits, specifically wage supplement benefits.

On June 28,
1996, the Workers' Compensation Court entered its findings of fact,
conclusions of law and judgment denying Yarborough any compensation
or medical
benefits. The Workers' Compensation Court held that Yarborough's PTSD
arose from "emotional or mental stress," and, therefore, was
excluded from the definition of injury as set forth under 39-71-119,
MCA (1987). Accordingly, the Workers' Compensation Court held that Yarborough's
condition was not compensable under the Montana Workers' Compensation
Act (the Act). From this judgment, Yarborough appeals. We affirm.

DISCUSSION

With regard
to Issue 1, we hold that the Workers' Compensation Court correctly
determined that Yarborough's PTSD is not a compensable injury under
39-71-119, MCA (1987). Consequently, we affirm the Workers' Compensation
Court's judgment denying Yarborough compensation and medical benefits.
Accordingly, because Issue 1 is dispositive, we will not address the
remaining three issues raised on appeal.

Did the Workers'
Compensation Court err in determining that Yarborough
did not suffer a compensable injury when he developed post-traumatic
stress
disorder?

In Conclusion
of Law No. 3, the Workers' Compensation Court stated in pertinent
part:

The claimant
in this case was fully credible. Nonetheless, I conclude
that as a matter of law claimant's psychological condition is not a
compensable injury within the meaning of the Montana Workers'
Compensation Act.

. . ..

In this case,
. . . there is no evidence indicating that claimant's
PTSD was caused by injuries he suffered on . . . October 22, 1987. The
injuries were resolved in a short time and were inconsequential. Rather,
the evidence demonstrates that it was the mental shock or mental fright
that
gave rise to claimant's disability. Thus, his mental condition is one
"arising
from . . . emotional or mental stress" and is excluded from the
injury
definition [under 39-71-119, MCA (1987)]. Since claimant's PTSD and
resulting disability were not a consequence of his physical injuries,
they are
not compensable under the Workers' Compensation Act.

(1) "Injury" or "injured" means:
(a) internal or external physical harm to the body;. . .. (2) An injury
is caused by an accident. An accident is:
(a) an unexpected traumatic incident or unusual strain;
(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body affected; and
(d) caused by a specific event on a single day or during a single
work shift.
(3) "Injury" or "injured" does not mean a physical
or mental condition
arising from:
(a) emotional or mental stress; or
(b) a nonphysical stimulus or activity.

Yarborough argues
that the Workers' Compensation Court's conclusion of law is
in error. He asserts that 39-71-119, MCA (1987), requires a claimant
to prove three things: (1) the claimant has an injury; (2) the claimant's
injury was caused by an
accident; and (3) if a mental condition is associated with that injury,
that mental condition cannot arise from "emotional or mental stress"
or "a nonphysical stimulus or activity."

Yarborough contends
that he proved all three elements. Specifically, Yarborough
contends that unlike the injuries at issue in both Stratemeyer v. Lincoln
County (1993), 259 Mont. 147, 855 P.2d 506 (Stratemeyer I); and Kleinhesselink
v. Chevron, U.S.A. (1996), 277 Mont. 158, 920 P.2d 108, his PTSD did
not arise from emotional or mental stress, but rather arose from a physical
stimulus--burns he received from the house-fire accident. See Stratemeyer
I, 855 P.2d 506 (holding that 39-71-119(3), MCA (1987), which precluded
Stratemeyer from recovering under the Act for his mental injuries arising
from emotional or mental stress, was constitutional). Alternatively,
Yarborough contends that 39-71-119(3), MCA (1987), does not require
that a mental condition result from physical harm to the body, but rather
only requires a physical stimulus or activity such as the house-fire
explosion. Therefore, Yarborough argues that he suffered a compensable
injury as defined in 39-71-119, MCA (1987).

MMIA responds
that the Workers' Compensation Court's conclusion of law is
correct. While MMIA does not dispute that Yarborough suffered physical
injuries on
October 22, 1987, MMIA also asserts that his physical injuries healed
quickly, left no
permanent disability, and Yarborough returned to work after a short
period of time.

Agreeing with
the Workers' Compensation Court, MMIA argues that Yarborough's
PTSD resulted not from his physical injuries which were resolved within
several weeks of the accident, but from the emotional and mental stress
of the accident combined with his pre-existing psychological distress.
Therefore, MMIA argues that the Workers' Compensation Court correctly
held that Yarborough's PTSD is not a compensable injury under 39-71-119,
MCA (1987).

This first issue
on appeal centers on the Workers' Compensation Court's
interpretation of 39-71-119(3), MCA (1987), as it applies to Yarborough's
PTSD.

We must determine
whether the Workers' Compensation Court correctly concluded that Yarborough's
mental condition arose from "emotional or mental stress."
In Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 915 P.2d 175
(Stratemeyer II), Stratemeyer, a deputy sheriff, sued his employer in
tort for mental injuries he allegedly suffered after responding to a
suicide call and witnessing the aftermath. On appeal, we addressed the
issue of whether Stratemeyer could bring a tort action against his employer
for mental injuries which were excluded from the Act. Stratemeyer II,
915 P.2d at 179-82 (second appeal arising from mental injuries he suffered
while working as deputy sheriff). See Stratemeyer I, 855 P.2d 506. We
held that because Stratemeyer's mental injury was by definition excluded
from coverage under the Act pursuant to 39-71-119, MCA, his mental
injury was also excluded from the exclusive remedy provision of 39-71-411,
MCA, and, therefore, he could sue his employer in tort. Stratemeyer
II, 915 P.2d at 179-82.

Our conclusion
that Stratemeyer's mental injury did not satisfy the definition of
compensable injury pursuant to 39-71-119, MCA, was based upon our
classification of Stratemeyer's emotional distress as "mental-mental"
(mental stimulus, mental consequence). Stratemeyer II, 915 P.2d at 182.
As defined under 39-71-119(3), MCA, þ þ[i]njuryþ
or þinjuredþ does not mean a physical or mental condition
arising from: (a) emotional or mental stress; or (b) a nonphysical stimulus
or activity." Consequently, because Stratemeyer's mental condition
arose from emotional or mental stress, his injury was excluded from
coverage by the Act. Sections 39-71-119(3) and 39-71-411, MCA.

Following the
rationale set forth in Stratemeyer II, we held in Kleinhesselink that
Kleinhesselink also was precluded from recovery under the Act, and,
therefore, he could proceed with his tort action against his employer.
Kleinhesselink, 920 P.2d at 111. Kleinhesselink worked as a safety coordinator
at a mining company. An accident occurred when Kleinhesselink's safety
instructions were ignored, resulting in the death and injury of mine
workers. Due to this accident, Kleinhesselink requested workers' compensation
benefits, alleging that he suffered from a variety of symptoms including
guilt, depression, chronic fatigue, insomnia, nausea, headaches, muscle
spasms and digestive problems. His request was denied. Kleinhesselink,
920 P.2d at 109-10. On appeal, we compared Kleinhesselink's injuries
to those Stratemeyer suffered. In addition to allegedly suffering "mental-mental"
injuries, as did Stratemeyer,Kleinhesselink also allegedly suffered
from "mental-physical" injuries. Kleinhesselink, 920 P.2d
at 111.

That is, Kleinhesselink
alleged that he suffered mental, emotional and
physical injuries which arose from the emotional or mental stress caused
by the mining accident deaths and injuries. Kleinhesselink, 920 P.2d
at 111. While Kleinhesselink's injuries were both physical and mental,
we noted that 39-71-119(3)(a), MCA, excluded from the Act both physical
and mental conditions arising from emotional or mental stress, i.e."mental-physical"
injuries and "mental-mental" injuries are excluded. Kleinhesselink,
920 P.2d at 111. Consequently, because Kleinhesselink's physical and
mental conditions arose from emotional and mental stress, he could not
recover under the Act for his alleged injuries, and, therefore, could
proceed with his tort action against his employer. Kleinhesselink, 920
P.2d at 111.

Just as in Stratemeyer
II and Kleinhesselink, Yarborough allegedly suffers from
a mental condition of PTSD. However, Yarborough argues that, unlike
Stratemeyer and Kleinhesselink, his mental injuries resulted from a
physical stimulus. While we agree with Yarborough's suggested analytical
approach concerning the requirements of 39-71-119, MCA (1987), we
disagree with Yarborough's argument that his mental injuries resulted
from a physical stimulus as required by 39-71-119(3), MCA (1987).
First, we find unpersuasive Yarborough's alternative argument that the
house-fire explosion itself constituted the required physical stimulus.
Furthermore, based on the evidence presented, we also disagree with
Yarborough's argument that the burns to his hands and face constituted
a physical stimulus which caused his mental injury of PTSD.

Rather, based
upon the plain language of 39-71-119, MCA (1987) and the
evidence presented, we agree with the Workers' Compensation Court that
Yarborough's PTSD arose from emotional or mental stress, and, therefore,
is not a compensable injury. First, Yarborough did suffer first and
second degree burns to his hands and face, and, therefore, experienced
an "injury" as defined by 39-71-119(1)(a), MCA (1987). Second,
he received these burns in the house-fire explosion on October 22, 1987,
and, therefore, his injury was caused by an "accident" as
defined by 39-71-119(2), MCA (1987). However, Yarborough's subsequent
mental condition of PTSD did not arise from a physical stimulus, i.e.
the burns to his hands and face, as required by 39-71-119(3), MCA
(1987). The Workers' Compensation Court explained that no evidence indicated
that Yarborough's injuries from the accident caused his PTSD, but, "[r]ather,
the
evidence demonstrates that it was the mental shock or mental fright
that gave rise to
[Yarborough's] disability." Thus, the Workers' Compensation Court
concluded that
Yarborough's PTSD arose from emotional or mental stress, and, therefore,
his mental condition was excluded from the injury definition under
39-71-119(3), MCA (1987).

Consequently,
the Workers' Compensation Court ruled that Yarborough's PTSD was not
a compensable injury under the Act. Upon review of the expert medical
testimony, we agree with the Workers' Compensation Court that no evidence
indicates that Yarborough's PTSD was caused by the physical injuries
he suffered from the accident on October 22, 1987. In fact, both medical
experts linked Yarborough's PTSD with the accident itself and not with
Yarborough's physical injuries--i.e. the first and second degree burns
which where treated and quickly healed without incident. In his opinion
letter dated January 8, 1996, Yarborough's psychiatrist, Thomas W. Van
Dyk, M.D., stated the following:

In my opinion
the traumatic events of the fire on October 22, 1987
aggravated and exacerbated [Yarborough's] previous mental condition
and
added a new feature to his psychiatric diagnosis, that being Post Traumatic
Stress Disorder. Because of this Post Traumatic Stress Disorder he was
no
longer able to continue his employment as a fire fighter because he
experience [sic] increased anxiety and revulsion and fear in dealing
with fire
situations. . . .. I feel that Mr. Yarborough should be permanently
restricted from working as a fire fighter because of the traumatic events
of
October 22, 1987, the consequent Post Traumatic Stress Disorder and
exacerbation of his other mental conditions.

Additionally,
after testifying on May 7, 1996, that he determined the explosion of
October 22, 1987 to be the cause of Yarborough's PTSD, Dr. Van Dyk explained
why he stated in his opinion letter of January 8, 1996, that Yarborough
should be permanently restricted from working as a fire fighter: I feel
that if he were to return to fire fighting and be exposed to another
explosion or dangerous fire situation where -- or these ambulance events,
there is the possibility of his anxiety getting worse, these post-traumatic
symptoms getting worse and him not functioning as a fire fighting or
ambulance person, being a [sic] dangerous to others or being dangerous
to himself by not being able to function, and becoming physically injured.
Similarly, on September 25, 1995, after conducting an independent psychological
examination of Yarborough, Joseph K. McElhinny, Psy.D., included the
following in his psychological evaluation: Mr. Yarborough's inability
to function as a fire fighter, by his report, after the work related
accidents in 1987 is primarily a result of his
pre-existing personality style and the non-work related psychosocial
stressors he was experiencing at the time. . . .. The work related accidents
no doubt exacerbated his psychologic problems and it is difficult to
determine at this late date when the post-accident trauma actually was
resolved. . . ..

I would estimate
that at least 80% of Mr. Yarborough's psychiatric
difficulties post-accident, were due to longstanding issues and 20%
were
exacerbation directly related to the accidents.

After reviewing
the evidence in the record, we hold that the Workers'
Compensation Court correctly concluded that Yarborough's PTSD arose
from emotional or mental stress, and, therefore, that Yarborough's PTSD
was not a compensable injury as defined by 39-71-119, MCA (1987).
Although Yarborough did suffer burns to his face and hands, no medical
expert testified that Yarborough's PTSD directly resulted from those
physical injuries. Rather, the medical testimony linked Yarborough's
PTSD only to the house-fire explosion itself. Consequently, just as
in Stratemeyer II and Kleinhesselink, Yarborough's PTSD resulted from
emotional or mental stress, and, therefore is a "mental-mental"
injury, excluded from the definition of injury as set forth under
39-71-119, MCA (1987). See Stratemeyer II, 915 P.2d at 182 and Kleinhesselink,
920 P.2d at 111. Accordingly, we affirm the Workers' Compensation Court's
judgment denying Yarborough compensation and medical benefits.